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Status of due process protections under Iranian law: Three examples

Several articles of the 1979 Iranian Constitution provide strong protections of due process rights. Protections enshrined in these provisions, however, are routinely violated in Iran’s judicial system. This article will explore Iran’s due process laws and procedures in three areas: i) being informed of the charges against the defendant, ii) the right to have access to counsel, and iii) legal clarity of what constitutes a punishable offence.

The right of the defendant to be informed of the charges against him or her

Article 32 of the Iranian Constitution declares:
No one can be arrested except in accordance with the rule and the procedures that are set by the law. In the case of arrest, the charge and the reason for the arrest must be immediately conveyed and communicated to the defendant in writing. The preliminary file must be submitted to qualified judicial authorities within twenty-four hours and the preliminaries for the trial must be set as quickly as possible. Anyone who deviates from this principle will be penalized in accordance with law.[1]
In many cases individuals arrested for their political activities or religious beliefs are not informed of the exact charges against them for long periods subsequent to their arrests. Jason Rezaian, Washington Post’s Iran correspondent in Tehran was arrested in July 2014, however the charges he was facing were announced to him or his legal team in April 2015.[2] Often, exact charges are announced after lengthy interrogations during which the defendant is tortured or put under tremendous pressure. This approach is in direct violation of Iran’s obligations under Article 9.2 of the International Covenant on Civil and Political Rights, which provides:
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.[3]

The right to be provided with effective assistance of counsel

Article 35 of the Iranian Constitution states:
Both parties to a lawsuit have the right in all courts of law to select an attorney, and if they are unable to do so, arrangements must be made to provide them with legal counsel.
With respect to this right, a recent change in Iran’s Code of Criminal Procedure has seriously undermined the rights of the accused. A note to Article 48 (on the right to request an attorney) of this code states:
In cases of crimes against internal or external security, and in cases involving organized crime, where Article 302 of this code is applicable, during the investigation phase, the parties to the dispute are to select their attorneys from a list approved by the head of the judiciary. The names of the approved attorneys will be announced by the head of the judiciary.[4]
The full implications of this provision, which was added at the last minute to the final version of the bill, are yet to be determined. It is clear, however, that under this rule defendants cannot access an attorney of their own choosing during the critical investigation phase, in which they could be subjected to torture or otherwise pressured to make false confessions. A letter signed by more than two hundred attorneys working in Iran voiced their concerns regarding Article 48 of the Code of Criminal Procedure.[5] In June 2015 and in response to objections to this provision, Ayatollah Sadegh Larijani, the head of the Iranian judiciary, cited security concerns as the rationale for allowing only a select group of pre-approved attorneys to represent defendants in sensitive cases during the investigation phase. Larijani stated, “Since the Islamic Republic’s most sensitive secrets are at issue in national security cases, the judiciary is entitled to select an attorney who it can trust and be assured that information is not leaked.”[6] Remarkably, Larijani carved out an exception for the principle of presumption of innocence regarding attorneys and said, “We are not leveling baseless accusations against attorneys. But when it comes to the Islamic Republic’s secrets the governing principle is not the presumption of innocence; rather it is caution.”[7] Larijani repeated his disdain for presumption of innocence in another context in August 2015. Addressing possible disqualification of candidates by the Guardian Council, Larijani stated, “Some said that presumption of innocence should be the default position, but this is a simple-minded assertion.”[8]

The principle of legality

The principle of legality, which means that there can be no legal punishment without a clearly defined laws criminalizing specific conducts, is a fundamental tenet of international human rights law. Article 15.1 of the International Covenant on Civil and Political Rights states that ’No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.’[9] The protection against ill-defined criminal statutes is a critical due process right, and its violation can lead to serious human rights abuses. Two examples of such abuses will be briefly discussed below.

Apostasy

Apostasy, generally defined as converting from Islam to another religion, can carry the death penalty in Iran. However, there is no specific provision in the Islamic Penal Code that codifies this crime. There are various interpretations of the concept of apostasy in Islamic jurisprudence, which means that the elements of this crime are not exactly clear. Apostasy is, nevertheless, occasionally prosecuted by invoking Article 220 of the Islamic Penal Code, which in turn cites Article 167 of the Iranian Constitution. Article 167 of the Iranian Constitution declares:
The judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment.[10]
This, in effect, means that a judge can rely on his own understanding of Islamic law to define and punish crimes not properly defined under the law, including apostasy. Since apostasy can be a capital offence, the fact that it is not defined in Iran’s main criminal statute constitutes a major abuse of due process rights.

The charge of disseminating propaganda against the Islamic Republic is often used to target political dissidents, journalists, and activists. The charge is overly broad and can encompass a wide array of activities. Article 500 of the Fifth Book of the Islamic Penal Code of the Islamic Republic of Iran defines this crime:
Anyone who engages in any type of propaganda against the Islamic Republic of Iran or in support of opposition groups and associations, shall be sentenced to three months to one year of imprisonment.[11]
In other jurisdictions the issue of the scope of such legislation is more clearly defined, as for example The European Court of Human Rights has explained that an offence should be clearly defined. The Court states, ‘This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable’.[12] The wording of Article 500, and its application, tell a very different story. Numerous individuals have been arrested and imprisoned under this provision for exercising their right to object to various government policies. The fact that Iranian citizens are routinely prosecuted under vague criminal provisions is another aspect of the violation of their due process rights.